Commonwealth DPP and McKay

[2015] VCC 1456

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-15-00686

Commonwealth Director of Public Prosecutions

v

Chanon Phillip McKay

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JUDGE:	Cannon
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2015
DATE OF RULING:	7 September 2015
CASE MAY BE CITED AS:	Commonwealth DPP and McKay
MEDIUM NEUTRAL CITATION:	[2015] VCC 1456

REASONS FOR RULING
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Subject:  CRIMINAL LAW
Catchwords:            Ruling – Admissibility of coincidence evidence
Legislation Cited:     Evidence Act 2008
Ruling:  Coincidence evidence ruled admissible

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms N. Sheridan-Smith	Commonwealth DPP
For the Accused	Mr G. Davis	Chester Metcalfe Lawyers

HER HONOUR:

1       This is an application by the Crown to adduce evidence for the purposes of coincidence reasoning, primarily in order to rebut a defence that the accused seeks to raise, that the consignments of cocaine were for his personal use.

2       Defence has indicated that the contents of eight consignments which form part of the notice of coincidence evidence, did contain, or were intended to contain at least, cocaine.  That is what the accused expected to receive, albeit that it is not conceded as to the quantity or quality of those packages.  Further, evidence will be adduced on behalf of the accused, that he had a high level of personal use of the drug of cocaine and in particular an expert, Dr Robertson, has been engaged to present evidence on the basis of instructions given to him by the accused as to his level of personal use, which is based on the three packages which were actually intercepted by the Federal Police.

3 It is conceded by defence that the evidence which is sought to be adduced as coincidence evidence by the prosecution, does amount to significant probative value. However it is submitted by Mr Davis on behalf of the accused, that the probative value does not substantially outweigh any prejudicial effect it may have on the accused and further, that even if that hurdle is passed, that the evidence will be excluded pursuant to s.137 of the Evidence Act.

4       The primary concern of Mr Davis is that the jury may well speculate as to the quantity and quality of the substance which was sent in those consignments which would unfairly or substantially prejudice the defendant in circumstances where it would only be conceded that a quantity that is at the marketable threshold for quantity of 2 grams, was to be received.

5       Having heard the submissions on behalf of the Crown and defence in relation to the prejudicial aspect that concerns defence, and having considered the evidence which is sought to be adduced and the respective positions of the parties, including the defence that is sought to be raised by the accused, I am satisfied that the evidence is admissible as coincidence evidence in respect of the facts in issue in this trial.

6       The probative value of the evidence does substantially outweigh any prejudicial effect it has on the accused, given that the accused would admit that he was a user of cocaine to a high level. There will be evidence before a jury in relation to three packages that he said he was intended to be the recipient of, which are the subject of Charges 1, 2 and 3 on the indictment, and he would admit to being the intended recipient of the other eight consignments which contained at least a marketable quantity of cocaine.

7       I am also satisfied that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused, given the issues and the stances of the respective parties in this trial in circumstances where I will be directing the jury that they must not speculate and will be giving them appropriate directions in relation to inferential reasoning.

8       Therefore, the evidence will be admitted.